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Johns v. Johns

Alabama Court of Civil Appeals

May 24, 2019

Alva Jean Johns
Joseph Carroll Johns

          Appeal from Mobile Circuit Court (DR-90-501758)

          HANSON, Judge.

         In August 1990, the Mobile Circuit Court entered a judgment divorcing Joseph Carroll Johns ("the former husband") and Alva Jean Johns ("the former wife") and awarding periodic alimony to the former wife in the amount of $600 per month, "due and payable on the 5th day of each and every month until such time as [the former wife] remarries or departs this life."[1] In March 2018, the former wife filed a process of garnishment directed to the United States Social Security Administration ("SSA")[2] seeking the withholding of $1, 500 in allegedly unpaid alimony; the former wife asserted therein that SSA "is or will be indebted to the [former husband] or has or will have effects of the [former husband] under its control." The former husband filed a motion to quash the process of garnishment, asserting that no action could be brought to enforce the divorce judgment more than 20 years after its entry; that the judgment should be conclusively deemed satisfied; and that there had been no monetary judgment for any alleged deficiency in alimony payments. The circuit court, after a hearing, granted the motion to quash and, after a subsequent hearing, denied the former wife's postjudgment motion to alter, amend, or vacate its judgment.

         The former wife timely appealed from the judgment quashing the process of garnishment, which is a final judgment susceptible to appellate review. See Kaufmann v. Kaufmann, 960 So.2d 689, 692 (Ala. Civ. App. 2006) (citing Ala. Code 1975, § 6-6-464, and Brown Shoe Co. v. Schaefer, 242 Ala. 310, 6 So.2d 405 (1942)). The former wife's appeal has been submitted on only her brief because the former husband did not favor this court with an appellee's brief.

         The record reveals that, although no testimony was presented at the hearing on the motion to quash, counsel for the former wife asserted at that hearing that he was prepared to present testimony to the effect that the former husband had paid only $300 in alimony for the month of December 2017, and no sums for the months of January and February 2018, whereupon counsel for the former husband stipulated that the former husband was not currently paying alimony to the former wife, and the trial court stated that it would "take [counsel] at [his] word" regarding the $1, 500 sum specified in the process of garnishment. Thus, there is no factual dispute on this record that the former husband, in fact, is in arrears as to his alimony obligation. We thus proceed to consider the bases asserted by the former husband in support of his motion to quash in determining the correctness of the circuit court's judgment granting that motion.

         The first two grounds cited by the former husband in support of the motion to quash were (1) that no action could be brought to enforce the divorce judgment more than 20 years after its entry and (2) that the judgment should be conclusively deemed satisfied. This court's decision in Willey v. Willey, 203 So.3d 875 (Ala. Civ. App. 2016), is squarely to the contrary. In that case, two former spouses had been divorced in 1975 by a judgment that had later been modified in 1982 to provide for periodic-alimony payments of 10% of the gross annual income of the paying former spouse (i.e., Allen Edward Willey, the former husband). In reviewing a judgment of a trial court dismissing an enforcement action that had been brought on September 19, 2014, by the recipient former wife in that case, Elizabeth Ellen Willey, this court rejected an argument made by the paying former husband that mirrors the one made by the former husband in this case:

"The former husband argued in his motion to dismiss that the former wife's petition was barred by the applicable statute of limitations. Section 6-2-32, Ala. Code 1975, provides that actions upon a judgment entered by any court of this state must be commenced within 20 years of the entry of the judgment. The former husband argues that, because the former wife's action for unpaid alimony was commenced on September 19, 2014, over 20 years after the entry of the December 12, 1975, divorce judgment, her petition was barred by the operation of § 6-2-32. We note, however, that 'each installment of periodic alimony awarded in a final judgment creates a final judgment on the date the obligation is due.' Johnson v. Johnson, 191 So.3d 164, 172 (Ala. Civ. App. 2015). Thus, the date of each installment of alimony that became due, rather than the date of the original divorce judgment, as argued by the former husband, is what we must look to in order to determine whether the former wife's claims are barred by the statute of limitations. The former wife concedes on appeal that, with regard to her claims for alimony installments that were due more than 20 years before the filing of her rule nisi petition, those claims would be barred by the 20-year statute of limitations. Thus, the trial court's dismissal is affirmed as to those claims for alimony installments that were due and owing before September 19, 1994. With regard to those installments that accrued after September 19, 1994, however, the former wife's claim for recovery is not barred by § 6-2-32. See Morgan v. Morgan, 275 Ala. 461, 464, 156 So.2d 147, 150 (1963) (indicating that recovery for child-support installments that became due within 20 years of filing petition seeking an arrearage on those installments was not barred by statute or by laches)."

         203 So.3d at 878 (emphasis added).

         After having rejected the proposition that a judgment providing for periodic-alimony payments could not be enforced more than 20 years after its entry, we next considered issues stemming from Alabama statutes governing satisfaction of judgments. We noted that the former wife in Willey had argued that Ala. Code 1975, § 6-9-191, which establishes a rebuttable presumption of satisfaction "[i]f 10 years have elapsed from the entry of the judgment without issue of execution or if 10 years have elapsed since the date of the last execution issued," and Ala. Code 1975, § 6-9-192, which sets forth a right of a judgment creditor to revive a judgment upon which an execution has not been made, should be construed so as to permit her to present evidence to rebut the presumption in § 6-9-191 as to "installments of unpaid alimony that accrued after September 19, 1994, but before September 19, 2004." 203 So.3d at 878-79. The former husband in Willey, in response, asserted that Ala. Code 1975, § 6-9-190, which bars revivor more than 20 years after entry of a judgment, barred the former wife from reviving the alimony award by rebutting the presumption set forth in § 6-9-191. This court, however, rejected the position of the former husband in that case:

"As stated previously, however, it is settled law in this state that past-due installments of alimony create final money judgments on the dates that those installments become due. See Johnson v. Johnson, [191 So.3d 164 (Ala. Civ. App. 2015)]. Thus, contrary to the former husband's argument, the relevant time from which § 6-9-191 operates is the time each of the installments of alimony became due."

Willey, 203 So.3d at 879.

         In this case, the former wife has initiated garnishment proceedings to enforce the former husband's duty to pay two particular periodic-alimony installments, i.e., the $600 installments due in January 2018 and February 2018, while acknowledging that the former husband paid half of the installment due in December 2017, i.e., $300 of the total $600 due. Under the circumstances of this case, we cannot conclude that the 20-year statute of limitations as to actions on judgments set forth in Ala. Code 1975, § 6-2-32, or the statutory bar in Ala. Code 1975, § 6-9-190, to revivor of judgments after more than 20 years are valid impediments to the former wife's efforts to enforce her right to receive the periodic alimony to which she is entitled under the parties' divorce judgment.

         As we have noted, the former husband also asserted in his motion to quash that the former wife was not entitled to garnish his Social Security benefits on the basis that there had been no monetary judgment entered for any alleged deficiency in alimony payments. However, as this court recently noted, an obligor former spouse is "not required to have the amount of the [obligee's] unpaid [support] obligations calculated and reduced to a new judgment before [seeking] to garnish [the obligee's] wages to satisfy [those] obligations." Drey v. Petersen, [Ms. 2170072, July 27, 2018] So. 3d, (Ala. Civ. App. 2018); accord Moore v. Moore, 160 So.3d 325, 327 (Ala. Civ. App. 2014) (reversing judgment determining garnishment to be "void" because of lack of money judgment as to past-due installments of spousal and child support pursuant to a divorce judgment), and Horwitz v. Horwitz, 897 So.2d 337, 344 (Ala. Civ. App. 2004) ("Accrued installment payments for ... alimony are final judgments, and an order of a trial court permitting payment of such judgments in installments is not a bar to any other process for collection of judgments, such as ... garnishment."). This third ground asserted by the former husband in his motion to quash is, therefore, no more availing than his other two grounds.

         Finally, we note the former husband's assertion at the hearing on his motion that, under Weaver v. Weaver, 523 So.2d 462 (Ala. Civ. App. 1988), an income-withholding order as provided for under Ala. Code 1975, § 30-3-60 et seq., may not properly be issued as to past-due alimony obligations in the absence of alimony-collection efforts on the part of the Alabama Department of Human Resources or its designees. However, the former wife has not sought the issuance of such a continuing income-withholding order against the former husband for the collection of all sums he may be required to pay to the former wife; rather, she has sought only a writ of garnishment as to the three installments we have discussed herein, and Weaver expressly noted that an obligee "has remedies, including the use of normal garnishment ...

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